Published on July 17th, 2011 | by Gary DeMar8
Reviving the Rotten Corpse of Natural Law
When Supreme Court Justice Clarence Thomas appealed to Natural Law theory in some of his legal opinions and writings, there were those on the Senate Judiciary Committee during his confirmation hearings in September 1991 who took exception. The most vocal critic was former Senator and now Vice President Joseph Biden. As long as Thomas defined Natural Law as Biden did, Thomas’ appeal to it was acceptable. But if he defined it as “Higher Law,” the belief that God was its author as eighteenth-century jurist William Blackstone (1723–1780) did, then his view of Natural Law would not be tolerated. Biden wrote an article that appeared in the September 8, 2001 issue of the Washington Postin which he claimed the following for his version of natural law:
- It does not “function as being a specific moral code regulating individual behavior.”
- It is not “a static set of unchanging principles.”
- It is “an evolving body of ideals.”
Basically, law is whatever the courts say it is. “In our system,” Biden wrote, “the sole obligation of a Supreme Court justice is to the Constitution. Natural justice can supply one of the important means of understanding the Constitution, but natural law can never be used to reach a decision contrary to a fair reading of the Constitution itself.” This is why the Left wants to be the gatekeepers to the Supreme Court by mandating a liberal litmus test to all prospective judges. Biden’s article does not tell us anything about how we determine what’s right or wrong. Morality is a matter of “individual choice,” and if you can get enough justices to agree with you, then it’s the law, and they are the ones who determine what “individual choice” means. But no matter the form of government, authority and law are foundational.
Every system of government exists to produce or enforce certain laws, and every law necessarily entails a set of moral assumptions. All morality—even that which is usually supposed to be, or touted as being, based upon an “irreligious” or anti-religious” philosophical foundation—is ultimately religious in its nature, since it is founded upon . . . fundamental assumptions about the nature of reality, about God, man, and things, which are taken on (a usually unacknowledged) faith. In this deepest sense, then, the question for every legal system is not whether it will be based upon “religion” but rather which religion or religious philosophy will be its foundation?
The modern conception of law is a far cry from the moral principles on which America was founded. Critics point out that America had its forms of injustice, for example, slavery. True enough, but it was because there was a “Higher Law” ethic based on biblical moral values that slavery was overturned. President Harry S. Truman voiced the common and prevailing sentiment of his day:
The fundamental basis of this nation’s laws was given to Moses on the Mount. The fundamental basis of our Bill of Rights comes from the teachings which we get from Exodus and St. Matthew, from Isaiah and St. Paul. I don’t think we comprehend that enough these days.
If we don’t have the proper fundamental moral background, we will finally wind up with a totalitarian government which does not believe in rights for anybody.
We cannot live within the fluid boundaries of legal relativism. There must be a definitive and final legal standard of appeal to justify moral decisions at the personal and governmental levels. If not, then one judge’s opinion is as good (or as bad) as another.
There is a long history in the United States where
John Quincy Adams (1767–1848) stated, “The law given from Sinai was a civil and municipal as well as a moral and religious code; it contained many statutes adapted to that time only, and to the particular circumstances of the nation to whom it was given; they could of course be binding upon them, and only upon them, until abrogated by the same authority which enacted them, as they afterward were by the Christian dispensation: but many others were of universal application – laws essential to the existence of men in society, and most of which have been enacted by every nation, which professed any code of laws.” He added that: “Vain indeed would be the search among the writings of [secular history] . . . to find so broad, so complete and so solid a basis of morality as this Decalogue lays down.”
John Witherspoon (1723–1794), the president of what later came to be known as Princeton and a signer of the Declaration of Independence, wrote that “moral law published upon Mount Sinai [is] the publication or summary of that immutable law of righteousness , which is the duty of creatures, and must accompany the administration of every covenant which God makes with man.”
John Jay (1745–1829), one of the authors of The Federalist Papers and served as the first Chief Justice of the United States Supreme Court, wrote the following in a letter dated April 15, 1818 to his friend John Murray: “[T]he law was given by Moses, not however in his individual or private capacity, but as the agent or instrument, and by the authority of the Almighty. The law demanded exact obedience, and proclaimed: ‘Cursed is every one that continueth not in all things which are written in the book of the law to do them.’” In that same letter, he wrote:
The inspired prophets, on the contrary, express the most exalted ideas of the law. They declare that the law of the Lord is perfect, that the statutes of the Lord are right; and that the commandment of the Lord is pure; that God would magnify the law and make it honorable, etc.
Our Savior himself assures us that he came not to destroy the law and the prophets, but to fulfill; that whoever shall do and teach the commandments, shall be called great in the kingdom of heaven; that it is easier for heaven and earth to pass, than one tittle of the law to fail [Matt. 5:17–18]. This certainly amounts to a full approbation of it. Even after the resurrection of our Lord, and after the descent of the Holy Spirit, and after the miraculous conversion of Paul, and after the direct revelation of the Christian dispensation to him, he pronounced this memorable encomium on the law, viz.: “The law is holy, and the commandments holy, just, and good” [Rom. 7:12; also see 1 Tim. 1:8].
There are a number of theologians who are trying to resurrect natural law as a secular alternative to specially revealed law, that is, laws that are found in the Bible. General revelation and its moral compatriot natural law can never stand on their own when it comes to moral particulars. I suspect that advocates of natural law are cheating when they claim that they can build an ethical system independent of special revelation and then further claim that this can be done by moral rebels. They seem to maintain that their moon (natural law) is an independent light not in need of the reflective light from the sun (special revelation). While they try to establish the independency of natural law, they are secretly using the sun’s rays (the whole Bible) to give light to their moon. Natural law advocates “are like the Irishman who preferred the moon to the sun, because the sun shines in the day-time when there is no need of it, while the moon shines in the night time; so these moralists, shining by the borrowed, reflected light of Christianity, think they have no need of the sun, from whose radiance they get their pale moonlight.”
A whole‑Bible ethic is the light by which all social theories gain their reflected light. The further we move away from the light of Scripture, the darker our world becomes. With man’s “cauterized and traumatized” sinful nature, there is no possible way that we can move in the direction of natural law for the development of a comprehensive ethical social theory. “Such has been the deteriorating influence of sin that ‘the [work of the] law written on the heart’ and ‘the light of nature,’ although these remain, no longer suffice as the organ of signifying God’s will to man. A supernatural revelation has been necessary to reveal the law of duty, as well as to reveal the method of salvation through redemption.”
Prior to Darwin, “the law of nature,” as English jurist William Blackstone put it, was “dictated by God himself” and “binding over all the globe, in all countries, and at all times: no human laws are in validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. . . . Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these.”[